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Den Tandt: Tories make a hash of new prostitution bill

Justice Minister Peter MacKay leaves a news conference on Parliament Hill in which he talked about the Conservative government's new legislation to criminalize the purchase of sexual services. SEAN KILPATRICK/THE CANADIAN PRESS/FILESPhoto: Sean Kilpatrick/THE CANADIAN PRESS

Short of dusting off the country’s old prostitution laws, printing them on fresh paper and saying “yes these are too legal, so there,” it’s tough to see how Justice Minister Peter MacKay could have made a worse mess of his new legislation on the sex trade.

At a stroke, the Harper government has won itself and the country an emotional, divisive debate over values and social policy, one that breaks down along classic social conservative/progressive lines, and one the Tories must know they will ultimately lose. And perhaps that’s the whole point: another big bust-up with professors, lawyers, journalists and other pointy-headed, latte-sipping flibbertigibbets.

Let us set aside, first, the bosh trotted out by MacKay as he unveiled his Bill C-36: that its purpose is to protect children. To hear the justice minister speak you’d think Canadian schoolyards are rife with hookers, flaunting their wares like caricatures out of Starsky and Hutch (the original TV show, not the remake) back in the 1970s. I have ferried my three children back and forth to school, in three different Canadian cities, hundreds of times over the past 17 years. I have never once seen sex being sold nearby, nor have I heard that sex was being sold nearby. Has anyone?

The problem, clearly, is situations in which teenagers, runaways or the homeless, become prostitutes, at the mercy of abusive pimps and johns. Any effort to stop the sexual exploitation of children and teenagers is very welcome. If MacKay’s proposed law imposed much harsher penalties on the exploiters and abusers of under-aged prostitutes, while at the same time legalizing and regulating consensual sex work among adults, he would have the basis of a law that might pass political and constitutional muster.

But that’s precisely the point; this law doesn’t do that. It ignores the explicit message in the Supreme Court’s ruling last year, which is that prostitutes have a right to work in safe conditions. Some sex workers, as became very clear in the aftermath of the ruling, freely choose this trade. MacKay, it appears, feels compelled to rescue them from their sordid existences; his law sets aside $20 million to help prostitutes find other work. But what about adults, female or male, who choose this work, and want to continue doing it?

The Supreme Court’s ruling found, in essence, that any law causing prostitutes to work furtively or in secret violates their right to health and safety. It was a profoundly progressive, enlightened decision, and it was unanimous.

C-36 de facto criminalizes sex work, by banning the purchase of sex or the advertising of sex services. But it also goes further, imposing penalties on prostitutes who solicit in places where children may be present. Broadly interpreted, that could be just about anywhere. Therefore the new legislation will have precisely the same practical effect as the old: to drive prostitution into the shadows, where women, primarily, will be vulnerable to johns and pimps.

The crux of the debate, philosophically, is simply this: If an adult, being of sound mind, wishes to purchase sex, and another adult, also of sound mind, wishes to sell it to him or her, in a private place, free of coercion, and not harming anyone else or breaking any other laws, then what business is it of the government to intervene? MacKay’s bill, and the language used to sell it, is redolent with sanctimony and moral judgment. That should not be the government’s purview.

Because C-36, in its effect, will be no different than the laws it is intended to replace, it is bound to wind up back at the Supreme Court – where it will quite likely be tossed, just as the old laws were tossed. So, why bring it forward?

The answer, likely, is that it creates a wedge, in an area where public opinion is mixed, between the Conservatives and opposition, in particular the Trudeau Liberals. The Grits really have no option but to oppose this. When they do, the Tories will portray them as a pack of drug-legalizing, prostitution-loving libertines, bent on transforming Canada’s placid, tree-lined playgrounds into havens of iniquity, debauchery and vice. Game of Thrones meets Don Mills.

It is, in sum, the Conservative party’s first big foray back towards the social conservatism of its Reform party roots, and away from the libertarian-leaning model that has worked for it for a decade. Further, it is evidence the Tories realize they need more than just their old mantra of thrift and tax cuts to motivate their base and hold off a Liberal resurgence. The hue and cry from civil libertarians may also cause social conservatives, so long ignored, to open their wallets.

Calculated for political gain it may be; that doesn’t make it right. Until it is overturned, C-36 can only put prostitutes at greater risk. It is irrational, misguided and recidivist social policy, in a country that has gotten used to better.

I am a national political columnist for Postmedia News. My work appears in the National Post, on Canada.com, the Ottawa Citizen, Montreal Gazette, Calgary Herald, Edmonton Journal, Halifax Chronicle-Herald... read more and Vancouver Sun, among other publications. I write primarily about national politics and policy.View author's profile